International Criminal Court Indictments of U.S. Officials Are not Impossible

The International Criminal Court (ICC) prosecutor’s long-expected request to open an investigation of U.S. armed forces and the CIA for crimes allegedly committed in Afghanistan will likely be approved and – although far from certain – it remains a possibility that U.S. officials could ultimately be indicted by the Court.

On November 20th, ICC Chief Prosecutor Fatou Bensouda requested the that the court’s pre-trial chamber authorize an investigation into the situation in Afghanistan. Besides crimes allegedly committed by the Taliban and Afghan security forces, the prosecutor says she wants to investigate ill-treatment of detainees by U.S. armed forces and the CIA. Since this presents the first time the court would be investigating a major western power, there is considerable uncertainty and speculation concerning how this process will unfold.

However, taking into account a number of legal and policy issues, it is entirely possible that U.S. officials could be indicted.

The ICC’s rationale

First off, Bensouda’s move should be seen through the lens of a calculated gamble that could dramatically increase the court’s status as a powerful international institution.

Bensouda must be aware that indicting U.S. officials would bring the ICC into a head-on confrontation with the U.S. that will prove difficult for the court to manage. However, the prosecutor also knows this will be seen as a major boost to the court’s legitimacy among key audiences, in particular the human rights community and State Parties skeptical towards the court’s tendency to focus on less powerful players. While a potential investigation in Afghanistan could undermine the ICC’s effectiveness as a criminal court in so far as indictments do not lead to trials, its relevance and reputation as an international organization could ultimately be enhanced, as others have argued.

Importantly, the Afghanistan investigation request comes amid the most serious crisis of the office of the prosecutor to date. This crisis – involving, among other allegations, accusations of undue contact between prosecutors and Western diplomats and a willingness to ‘let go’ of politically sensitive cases – mainly relates to the conduct of the previous chief prosecutor, Luis Moreno-Ocampo. Yet, it could be a factor influencing how the office would like to proceed in this situation, in part because prosecutors may be keener than ever to demonstrate their independence and willingness to proceed against powerful players.

Gravity

In this particular case, Bensouda is relying on the so-called ‘proprio motu’ powers in the ICC Statute, which allows her to pursue an investigation in the absence of a referral by a State Party or the UN Security Council. To make this happen, the pre-trial chamber would need to determine that there is a ‘reasonable basis’ to proceed with an investigation.

One key issue in this regard is whether the chamber will find that the so-called ‘gravity’ requirement in the statute is satisfied. That is, are the alleged crimes serious enough to warrant an investigation by the court?

For now, Bensouda has submitted evidence relating to torture and other forms of ill-treatment by the U.S. military and CIA against 54 and 24 detainees, respectively. This is a relatively small number of incidents for a case appearing before the ICC, and something that the chamber will likely take into account when weighing the gravity of the crimes.

However, the ‘reasonable basis’ threshold for authorizing an investigation is low, and other factors, such as the manner in which the alleged crimes were committed and their impact on victims, are likely to pull the chamber towards a conclusion that the gravity threshold should be seen as satisfied at this stage.

Complementarity

The ICC is popularly known as a court of ‘last resort’. This refers to the so-called complementarity regime of the ICC whereby a case is inadmissible if it is – or has already been – investigated or prosecuted by a state which has jurisdiction over it “unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”

In her request for an investigation, Bensouda submitted that “it is apparent that either no national investigations or prosecutions have been conducted or are ongoing against the persons or groups of persons” covered by the request, “or the information available is insufficient to identify the contours of any relevant national proceedings.”

At this stage, the pre-trial chamber is likely to agree with these observations, meaning that the principle of complementarity won’t bar the ICC from moving forward. It is possible however that the assessment of national proceedings in the U.S. could change in the course of an investigation, something that could potentially lead to a termination of the aspects of the investigation relating to U.S. armed force and the CIA.

This could happen if the U.S. opens new criminal investigations covering the alleged crimes in Afghanistan. But as David Bosco argues, “the chances of the Trump administration (or, in truth, any U.S. administration) launching additional domestic investigations and prosecutions are remote.”

In theory, the U.S. could also formally challenge admissibility of the cases presented by Bensouda on the basis that past investigations and prosecutions in the U.S. covered the same crimes. However, because the U.S. disputes the ICC’s jurisdiction over U.S. citizens, the administration is unlikely to seriously consider formally engaging the legal process.

And as Stephen Pomper recently argued on this site, the U.S. could also try negate the need for further ICC involvement by informally submitting information concerning the nature and scope if its own past investigations into the cases Bensouda is pursuing, in an attempt to show that these were genuine proceedings covering the persons responsible for the crimes.

Yet even if the U.S. provides the court with information relating to these past proceedings, it is far from certain this will lead to a termination of the investigation. One key challenge for the U.S. is that the ICC is primarily interested in seeing national proceedings being conducted covering the persons most responsible for the alleged crimes – and these proceedings need to be criminal in nature. As the prosecutor noted in her request, no (publically available) information suggests that criminal investigation or prosecution ever occurred in the U.S. with respect to officials who devised, authorized or bore oversight responsibility for the crimes committed.

Unless the U.S. commences fresh criminal investigations targeting senior decision-makers, the ICC is therefore likely to maintain that complementarity does not present an obstacle for moving ahead.

Evidence

When some commentators believe it is rather unlikely that the ICC would ever indict any U.S. government officials it is in part because it will be difficult to develop the necessary evidence in the absence of cooperation by the U.S. and other key states such as Afghanistan. Whereas it is true that it will be difficult – if not impossible – to interview many key witnesses in the absence of such cooperation, it is equally true that important evidence, such as documents pointing to the authorization of enhanced interrogation techniques, is publically available. As the prosecutor notes, a U.S. Senate Committee found that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.” This presents a unique opportunity for Bensouda to use the novel approach of building a case mainly on the basis of documentary evidence.

Likely targets of an ICC investigation

Should the ICC proceed to a full investigation, who then are the most likely targets? In her request, the prosecutor hinted that she may be particularly interested in pursuing persons associated with the CIA.

For one, she intimates that she views the crimes committed by the CIA as both more serious and systematic compared to crimes committed by U.S. armed forces. The prosecutor notes that the treatment of CIA detainees “appears to have been particularly grave on a qualitative assessment.” She further emphasizes that “compared to the localised approval of certain interrogation techniques within the US military command structure in Afghanistan, the CIA’s use of the interrogation techniques . . . was authorised as official policy.”

Another key reason why the prosecutor may be likely to focus primarily on the CIA has to do with the Obama administration’s policy decision not to prosecute CIA officers. As noted in the prosecutor’s request, whereas some investigations and prosecutions have taken place in situations where CIA detainees died, a decision was made by the DOJ not to prosecute “any person who acted in good faith within the scope of the legal guidance given by the OLC regarding the [CIA’s] interrogation of detainees.”

Importantly, the prosecutor asserts that the OLC’s legal advice amounts to criminal conduct under the ICC Statute, noting that the scope of authorization provided by the legal opinions “breached the applicable prohibitions under the Rome Statute and international law more generally against torture, cruel treatment and outrages against upon personal dignity.”

Ramifications for the US

So far, U.S. reactions to the ICC prosecutor’s move have been measured (some would say surprisingly restrained given Trump’s habits), mainly relying on standard objections to the ICC claiming jurisdiction over U.S. citizens. This could change if an official investigation is opened – and it most certainly would if senior U.S. officials are indicted.

Although it seems unlikely that any U.S. citizen will ever stand trial at the ICC, the potential issuing of arrest warrants would create some trouble for the U.S. Should arrest warrants be issued, member states to the ICC – involving more than 120 states, some of which (including Japan, the United Kingdom and other European states) are among the U.S.’ closest allies – would be legally compelled to enforce the arrest warrants, even if they target current or former government officials. While U.S. pressure would likely result in these states putting their legal obligations aside, such a situation would nonetheless create significant diplomatic and legal trouble for the U.S. and its allies. ICC indictments, especially if met by U.S. non-cooperation, would also seriously compromise the U.S.’ already threatened position as an advocate of international justice and the rule of law abroad.

About the Author(s)

Thomas Obel Hansen is a lecturer in the Ulster University School of Law and a member of the Transitional Justice Institute. He obtained his LLM (2007) and PhD in Law (2010) from Aarhus University Law School in Denmark.